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A NHS Foundation Trust v Ms X

Ms X was a young woman who suffered from an enduring and severe form of anorexia nervosa and alcohol dependence syndrome which had caused chronic and now “end stage” and irreversible liver disease.

She had been trapped for many years in an increasingly destructive revolving door of treatment and recurrent illness: she was treated for the anorexia but on discharge sought refuge in alcohol and sought to undo the weight gains achieved in hospital. At the date of the application she was in extremely poor health: extraordinarily malnourished and consuming in the region of half a bottle of vodka per day. Her BMI of 12.3 – 12.6 kg/m2 would ordinarily provoke further admission to hospital but the doctors who had treated her in recent years regarded it as “clinically inappropriate, counter-productive and increasingly unethical” to cause her to be admitted for further compulsorily feeding”.

The NHS Trust sought declarations that:

i) It was not in Ms X’s best interests to be subject to further compulsory detention and treatment of her anorexia nervosa, whether under the Mental Health Act 1983 or otherwise, notwithstanding that such treatment may prolong her life.

ii) It was in her best interests, and should be declared lawful, for her treating clinicians not to provide Ms X with nutrition and hydration with which she does not comply.

The Trust contended that Ms X did not have capacity to make a decision as to whether it would be in her best interests to receive treatment for anorexia.

The Trust was not seeking authorisation to withhold treatment. Treatment remained on offer should Ms X wish to avail herself of it. This was, therefore, a case about the lawfulness of not compelling treatment.

Ms X herself supported the application. Her litigation friend, the Official Solicitor, having tested the evidence, did not oppose the application.

Having heard evidence from experts, from a friend of Ms X (Ms Y) and having considered Ms X’s own views as expressed in writing, Cobb J concluded that Ms X: (i) lacked capacity to litigate and to make decisions about her eating disorder. He accepted the view of the doctors that she did have capacity to make decisions about alcohol.

Cobb J went on to consider an ADRT in relation to future treatment of her liver disease which Ms X had made in June 2014. He held that she had capacity to make the Advance Decision when she did so and still did have capacity in relation to the matters reflected in the Advance Decision. The ADRT was therefore entitled to the fullest respect.

Cobb J then went on to consider Ms X’s best interests. He noted that he was naturally steered to exercise his judgment in a manner which attaches the highest (even if not absolute) priority to the preservation and sanctity of life. As he noted, one might assume therefore that it would be in Ms X’s best interests to order that she be forcibly fed:

42. Medical treatment is invariably designed to achieve the protection and preservation of life. But there is a paradox in this case: that if I were to compel treatment, I may (and the doctors argue strongly that I would) be doing no more than facilitating or accelerating the termination of her life. I have no jurisdiction to make ‘best interests’ decisions about Ms X’s drinking; that remains wholly within her power. Any treatment for her anorexia (particularly if that is in-patient and compelled) is likely – on past experience – to provoke subsequent increased, sustained and dangerous alcohol consumption which will (in the medical view) hasten Ms X’s death.

The paradox extended further as all the professionals and Ms Y considered that if Ms X retained her autonomy she might access some medical help, even if it were only of a palliative nature. There were also other factors ranged against the compulsion of medical treatment at this stage for Ms X. The process of admitting Ms X and compelling her re-feeding would be highly traumatic (probably requiring restraint). Articles 3 and 8 ECHR were engaged in repeated forcible feeding over a long period of time against her clearly expressed wishes. There were also hazards. The combination of liver disease and previous nasogastric feeding treatments meant that Ms X now had varicose veins in her throat and the process of inserting the tube could lead to bleeding.

The judge also took into account Ms X’s expressed wishes and feelings. She wholeheartedly supported the application. The judge also gave weight to the evidence of Ms X’s friend Ms Y who he found had brought “extraordinary wisdom, compassion, objectivity and insight into the current dreadful situation affecting her closest friend.”

Cobb J concluded that the relief sought by the Trust would be in Ms X’s best interests. Whilst he described the evidence as unanimous, the decision was clearly not an easy one and he recorded that he was reassured by the fact that it was not just those who knew Ms X well who had concluded that it would be in her best interests but that it was also the view of the independent and jointly instructed Dr Glover (who had advised the court in 3 similar cases in the past).

Cobb J concluded:

“This is an unusual and desperately sad case. I believe that I speak for all those who have had to grapple with the issues – medical professionals and lawyers alike – in expressing the hope that Ms X does indeed access some medical treatments which will have the effect of prolonging her life. I have, faithful to the guidance offered by Baroness Hale in the Aintree case, considered the welfare of Ms X “in the widest sense”; I have reflected on what treatment would mean for her, not just medically but socially and psychologically. So far as I can do so, I have endeavoured to put myself in the place of Ms X, and guided by what she has directly told me and others, I have considered what her attitude to the treatment is or would be likely to be. Having fully reviewed the circumstances of this case, and for the reasons discussed above, I have reached the clear conclusion that I should not compel treatment for Ms X’s anorexia.

I hope that Ms X will nonetheless realise that it would be of enormous benefit to her to access treatments (at least in the form of palliative care, nursing support and dietetic guidance) which may improve the quality of the limited life she has left to her, if not to render more dignified its passing.”

Comment

This is in many ways a text book example of a thoughtful and meticulous best interests decision. It does indeed draw on Aintree to consider Ms X’s welfare in the widest sense and gives clear weight to Ms X’s wishes and feelings against the background of what Cobb J described as a judicial instinct to preserve life.

It is against that context that we raise the issue (a little hesitantly) that we struggle to see how Cobb J could grant a declaration as a CoP judge that the MHA 1983 could not be used. The decision whether or not to detain Ms X under the MHA 1983 is not a best interests decision (it is, ultimately, a public law decision by an AMHP whether an application is necessary and proper – see s.13 MHA 1983). Further, the Court of Protection has no jurisdiction to make any decisions in relation to forced treatment under the provisions of Part IV of the MHA 1983 (s.28 MCA 2005). It is therefore difficult, we suggest, to see how Cobb J could – as a Court of Protection judge – make the declarations that he did.

Procedurally, the proper route (in our view) for Cobb J to do what – substantively – he was entirely correct to seek to do would have been to constitute himself as a judge of the High Court and grant a declaration as to the lawfulness of the approach to be adopted by the Trust. This declaration could have been granted, we suggest, either under the provisions of Part 8 of the CPR or, potentially, by Cobb J simply exercising the inherent jurisdiction of the High Court. A similar route, albeit for different purposes, was adopted by Mostyn J in Nottinghamshire Healthcare NHS Trust v RC [2014] EWCOP 1317, another case in which the court properly wished to deploy considerations of capacity and best interests in a sphere governed by the MHA 1983. The eagle-eyed will have spotted that, whilst Mostyn J made the requisite findings in respect of RC’s capacity and in relation to the provisions of the ADRT in that case wearing his COP hat, he made the declaration that it would be lawful not to administer blood transfusions (even though they could, in theory, be administered under the provisions of s.63 MHA 1983) as a High Court judge.

Some readers might wonder whether these procedural points are not on the arcane side. We venture to suggest not because Parliament has sought – albeit in a horribly messy fashion – to delineate a clear distinction between the functions of decision-makers under the MCA and MHA 1983 (and the factors that are to govern their decisions), and decisions such as the present (and also, arguably, that in ML) risk blurring those distinctions. Even if this is for reasons that make sense on the facts, it makes it all more difficult for professionals applying the two regimes to be clear as to when they are to operate one or the other (or, potentially, both in parallel).

We note, finally, that Dr Glover revealed that Ms E (the subject of a hotly contentious decision of Peter Jackson J in 2012) is still alive, receiving treatment as an inpatient in hospital. Whether or not this was information that he could properly impart (which we are not in a position to comment upon), it does provide both a useful corrective to an urban legend that we were aware of that she had died, and also an interesting (and rare) insight into the ‘afterlife’ of a Court of Protection case.

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Covid-19

The vast majority of both Members of Chambers and staff are now working remotely from home, with a small staff team on site in our London office.

It would greatly assist us if you could either email or use direct dial or mobile numbers rather than telephone us on our main line. Our clerking team’s direct contact details (email, telephone and mobile) can be found hereand staff details here. Members’ direct dials can be found on their personal profiles by downloading their vCard.

We are also asking for all instructions and documents electronically. Where hard copies have to be sent to Chambers, please liaise in advance with the relevant clerk and member to arrange delivery directly to the barrister concerned.

Members can easily attend conferences and hearings using our telephone and video virtual conferencing facilities.